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BY ARTHUR S. LEONARD | A New York State Supreme Court justice in Manhattan has ordered the city’s Administration for Children’s Services (ACS) to pay for gender reassignment procedures, including surgery, for a 20-year-old transgender woman still in the foster care system.

Justice Peter H. Moulton’s March 21 order — first reported in the New York Law Journal on March 31 — came in response to an ACS deputy commissioner’s 2013 denial of an application for such treatment made by D.F., as the young woman is identified in court papers.

The medical procedures are not covered under New York State’s Medicaid program and so would have to be paid for out of the ACS budget, and the tenor of Moulton’s opinion suggests a suspicion that the agency was hoping to avoid paying the estimated $46,000 in expenses while the date when D.F. reaches 21 and ages out of the foster care system approaches.

D.F., recorded as male on her birth certificate, has identified as female for many years and was diagnosed with gender dysphoria, an assessment ACS does not dispute. D.F. and her sister entered foster care in 2009, after ACS filed a petition of neglect against her parents. According to that petition, D.F. suffered criticism from her parents over their views of her sexual orientation and gender expression and was physically abused by her father, who was a drinker. The Family Court placed D.F. in LGBTQ youth housing facilities run by Green Chimneys and later by SCO Family of Services.

As she grew older, however, D.F. was absent from these facilities for extended periods while she stayed with friends, including in a Queens house she asserted is being considered for certification as a foster home.

Doctors from Green Chimneys and the Callen-Lorde Community Health Center who have treated D.F. agreed she needs gender transition treatments, including hormones, which she began taking a few years ago, and, now, surgery. Based on their recommendations and her strong desire for these treatments, D.F. submitted her application to ACS.

ACS’ procedure for handling such applications is to have its Health Review Committee make a recommendation to the deputy commissioner — in this case, Benita Miller — who has final responsibility for a decision. The agency’s policies specify that decisions about transgender treatment are to be made in accordance with the standards of care established by the World Professional Association for Transgender Health, usually referred to as the Harry Benjamin standards.

Though the Health Review Committee endorsed the recommendations of D.F.’s doctors, Miller rejected the petition last July 11, basing her decision on D.F.’s frequent absences from her foster placement and her record of having missed some healthcare appointments. When D.F. tried to appeal this ruling, she was told the deputy commissioner’s decision was final.

Miller had also faulted D.F.’s application, in part, because it failed to formally include all the surgical procedures she was requesting, so the young woman submitted a second, more inclusive application on July 18, The new application supplemented her doctors’ earlier statements with newer ones specifically stating that her hormone treatment was “insufficient to her ultimate goals” and that the procedures she was requesting “would serve a therapeutic purpose and improve her well-being.” The doctors noted that D.F. understood the risks of gender surgery and was able to provide informed consent.

Departing from its own rules, ACS did not submit this second application to the Health Review Commission, but instead consulted an “independent specialist,” Dr. John Steever, an assistant professor of pediatrics and adolescent medicine at Mount Sinai Medical Center who has expertise in LGBT youth healthcare issues. Declining to meet with D.F., Steever decided, based on the paper record, that her “poor adherence to ACS recommendations and program” suggested she would not be compliant with post-operative procedures, which could result in “infections, unnecessary scarring, urinary problems, and sexual sensation problems.” He did not dispute the gender dysphoria diagnosis, but stated there was no emergency that required immediate surgery and the procedures could be deferred until D.F. showed an ability to comply with follow-up care requirements.

Moulton noted the difficulties D.F. would have in getting the treatment she needs once she is out of the foster care system, writing that Steever “does not address how a transgender young adult, aging out of foster care with no family support and few apparent prospects for employment, might pay for these procedures.”

Finding little reason to credit Steever’s recommendation, Moulton concluded that Miller’s denial of D.F.’s second application, on October 15, 2013, which relied explicitly on that recommendation, was “arbitrary and capricious for several reasons” and a violation of D.F.’s rights.

Moulton agreed there was no dispute about D.F.’s need for follow-up care after the surgical procedures, but found no basis in the record for Miller’s conclusion that D.F.’s absences from her group homes and occasionally missing medical appointments “are indicators that she will not participate in necessary post-operative care.” D.F. had a consistent record of following her hormone treatment protocols, “repeatedly and consistently tested negative for STDs and HIV,” had no drug or alcohol abuse history, and enjoyed the support of her doctors.

Moulton also criticized ACS’ failure to follow its own procedures, bypassing its Health Review Committee with D.F.’s second application and instead referring it a pediatrician, rather than a mental health professional. The agency’s standards require that it be a “qualified mental health professional” who makes the assessment of a request for gender transition surgery. The judge also pointed out that it is “a deviation” from the Harry Benjamin standards of care for ACS to rely on the recommendation of an expert who had not met with the petitioner.

Given the standards adopted by the agency and the role it gives to the Health Review Committee, Moulton found, it was also “arbitrary and capricious” for the agency to give its deputy commissioner authority to deny treatment for reasons not mentioned in its criteria and then not subject that decision to appeal.

Moulton, however, came back to the issue that apparently concerned him most.

“ACS’ denial of the requested surgeries and procedures ‘at this time’ thus completely ignores another factor: petitioner’s almost certain inability to pay for these surgeries and procedures,” he wrote. “Once she ages out of foster care, petitioner’s chances of raising the money necessary to pay for these procedures appear to be nil,” especially given that she has not yet completed her GED.

“The inability to pay for gender affirming surgeries and procedures after foster care is not a factor that should trump clinical factors,” Moulton continued, “but it certainly should not be absent from ACS’ decision making. Payment by ACS for necessary medical procedures may be a transgender youth’s only chance to achieve congruence between her gender identity and her physical appearance.”

D.F. was represented by Courtney Camp and Judith Stern, attorneys with the Legal Aid Society. Tamara Steckler, the attorney in charge of Legal Aid’s juvenile rights practice, told the Law Journal that requests for such surgery had occasionally been granted by ACS in the past, but that “this area is not well fleshed out.” The city, Steckler argued, should take this opportunity to review its procedures and “better support our clients aging out of foster care.”

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